2023 (12) TMI 597 - HC - Customs

Seeking provisional release of the goods imported by the petitioner albeit on furnishing a bond equivalent to the value of seized goods and a bank guarantee/security deposit equivalent to 120% of the said amount - Constitutional Validity of Circular bearing No. 35/2017-Cus dated 16.08.2017 - HELD THAT - Paragraph 2 of the impugned Circular to the extent it curtails the discretion accorded to the adjudicating authority is set aside as being contrary to the Customs Act - The impugned order is set aside and the petitioner s application for the provisional release of the goods is restored before respondent no. 6. Considering that the goods involved are perishable, respondent no. 6 is directed to decide the matter afresh and pass a speaking order within a period of four working days from date after hearing the petitioner - The petitioner shall appear before respondent no. 6 on 11.12.2023 at 10 30 a.m. Application disposed off.

Summary

Issues involved: Impugning a Circular u/s Customs Act, 1962 & Order for provisional release of imported goods.

Impugned Circular Contrary to Customs Act:
The petitioner challenged a Circular and an order directing provisional release of goods, contending that the Circular curtailed the adjudicating authority's discretion granted by Section 110A of the Customs Act. The Circular set conditions and security requirements for provisional release, which the petitioner argued were contrary to the Act. The petitioner relied on a previous decision by a Coordinate Bench of the Court in a similar case.

Validity of Impugned Circular:
The Court examined the impugned Circular and noted that it restricted the adjudicating authority's discretion provided under Section 110A of the Act. The Circular outlined specific cases where provisional release would not be allowed and detailed the security measures required for release. Citing the previous decision, the Court found that the Circular was in conflict with the statutory provision and, therefore, declared it void and unenforceable.

Setting Aside Impugned Order:
The Court also considered the impugned order directing provisional release of goods based on the Circular's provisions. It was observed that the order was influenced by the Circular's requirements for a bond and security deposit. Consequently, the Court set aside the impugned order and directed a fresh decision by the adjudicating authority, emphasizing the perishable nature of the goods involved.

Decision and Directions:
The Court allowed the petition, setting aside the impugned Circular to the extent it limited the adjudicating authority's discretion. The impugned order was also overturned, and the petitioner's application for provisional release was restored before the adjudicating authority. Given the perishable nature of the goods, the authority was instructed to make a prompt decision within four working days after hearing the petitioner. The petitioner was required to appear before the authority on a specified date and time. The pending application was disposed of accordingly.